Written by Martin P.J. Kratz

Canada’s Anti-Spam legislation (CASL) is a complex, onerous and ambiguous legislative system. The ambiguities were identified in a constitutional challenge that the CRTC acknowledged but ruled did not go to the point of undermining the legislative regime. Parliament’s five-year review obtained considerable consultation identifying numerous compliance issues arising from the uncertainties that the law creates. The Standing Committee on Industry, Science and Technology report did identify a number of items where clarification would reduce the uncertainty with respect to the interpretation of many of the law’s provisions, as well as to avoid overly burdensome costs of compliance. The government responded favourably to the need for clarity stating, “The government has noted the Committee’s concerns that the Act and its regulations require clarifications to reduce the costs of compliance and better focus enforcement and that a number of witnesses echoed the concerns raises about perceived ambiguities in the interpretation of certain provisions of the Act.” Yet the time horizon for those clarifications are still some time away.

In the meantime, and dispute the acknowledged uncertainties in the legislative regime, the CRTC continues its enforcement activities.

514-BILLETS, a ticket reseller, agreed to pay $100,000 in an undertaking with the CRTC to resolve claims it violated CASL. The violations alleged are that 514-BILLETS violated CASL by sending text messages without the recipient's consent, without information identifying the person who sent the messages, and without information enabling the recipient to readily contact the sender.

The case is interesting for several reasons. It is an enforcement case involving text messages and not just emails as most prior decisions. This reinforces that text messages can also be Commercial Electronic Messages (CEMs) under CASL. CASL has prescriptive notification requirements and senders of text CEMs need to be creative to satisfy those requirements in short text messages.

Secondly, the payment set out in the undertaking is structured in a creative way. Of the $100,000 payment, $25,000 goes to the Government of Canada, and the remaining $75,000 is to be paid in the form of $10 rebate coupons offered to 7,500 clients.

As is common in such undertakings, 9118-9076 QUÉBEC INC. and 9310-6359 QUÉBEC INC., the companies operating as 514-BILLETS, agree to put in place a compliance program and appoint an officer responsible for organizational compliance with CASL.

While many businesses wait for the increased certainty and reduced compliance costs that may come with law reform, all organizations should be reminded that CASL is still in effect and being enforced. Organizations need to navigate through the current uncertainties and ensure they are complaint with CASL.